Land and Environment Court New South Wales Medium Neutral Citation: Woonona Pty Ltd v Wollongong City Council [2021] NSWLEC 1327 Hearing dates: 27 May 2021 Date of orders: 11 June 2021 Decision date: 11 June 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 2020/297 for the demolition of existing structures, a Torrens title subdivision into two lots and construction of a dual occupancy development on each resultant lot, is refused. (3) The exhibits, other than Exhibits 4, A, B and C, are returned. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision into two lots – dual occupancy development on each resultant lot – insufficient site width – number of storeys – desired future character – poor internal amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Woonona Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: Planning Law Solutions (Applicant) Wollongong City Council (Respondent) File Number(s): 2020/285223 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/297 for demolition of existing structures, Torrens title subdivision into two lots and construction of a dual occupancy development on each resultant lot (the proposal) at 18 Hopetoun Street, Woonona (the site) by Wollongong City Council (the Council). 2. The appeal was subject to conciliation on 17 December 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. 3. Leave was granted by the Court on 9 February 2021 for the applicant to amend the application by relying on amended plans, subject to an order that the applicant pay the Council's costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed. Issues 1. The Council's contentions can be summarised as: * The proposed site width for Lot 1 does not meet the minimum width required under Wollongong Development Control Plan 2009 (DCP 2009) Chapter B1 and the proposal fails to meet the objectives of the control; * The proposal does not provide a dedicated access corridor for the rear dual occupancy, contrary to DCP 2009 Chapter B1; * The proposal includes two-storey development on Lot 2 contrary to the controls in DCP 2009 Chapter B1; * The proposal does not adequately respond to the desired future character of Woonona; * The proposal includes poorly sized living spaces; * The site is not suitable for the development. The site and its context 1. The site is legally described as Lot B in DP 157627. The site is on the northern side of Hopetoun Street, to the east of Pitman Lane. The site has an area of 1279.61sqm and a frontage of 15.24m. The site is currently occupied by a single dwelling and an outbuilding. 2. There is a multi-dwelling housing development comprising 10 units on the adjoining site to the east. There is a three-storey residential flat building to the west of the site, to the rear of the adjoining dwelling at 20 Hopetoun Street. The proposal 1. The proposal is for the demolition of existing structures on the site, the Torrens title subdivision of the lot into two lots and construction of a dual occupancy development on each of the resultant lots. 2. The proposed Lot 1 is 611.5sqm and the proposed Lot 2, at the rear of the site, is 686.5sqm (647.5sqm excluding handle). Lot 1 has a frontage of 14.24m and Lot 2 has an access handle 1m wide adjacent to the western boundary of the site. 3. The proposal includes the demolition of an existing garage and provision of stormwater infrastructure on the adjoining property at 93 Farrell Road, Bulli (Lot 13 in DP 6454). A letter on behalf of the owner of 93 Farrell Road, Bulli agreeing in principle to the granting of an easement for drainage over their property to benefit the proposed development is included in the application (Ex A). 4. The proposal is for a detached dual occupancy on Lot 1 (Units 1 and 2) and an attached dual occupancy on Lot 2 (Units 3 and 4). Units 1 and 2 are each two storeys high, with a double garage and 3 bedrooms. Units 3 and 4 are within a single building which is two storeys high, and each unit has a double garage and 4 bedrooms. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to Wollongong Local Environmental Plan 2009 (LEP 2009) and dual occupancies are a permitted with consent in the R2 zone. The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Subdivision is permissible with development consent, pursuant to cl 2.6 of LEP 2009. Demolition works may be carried out only with development consent, pursuant to cl 2.7. 2. The minimum subdivision lot size for the site is 449sqm (cl 4.1 and Lot Size Map - sheet LSZ_023 of LEP 2009). The proposal complies with the minimum lot size development standard. 3. The height of buildings development standard for the site is 9m (cl 4.3 and Height of Buildings Map – sheet HOB_023 of LEP 2009). The proposal complies with the height of buildings development standard. 4. The site is mapped as being impacted by Class 5 acid sulfate soils, pursuant to cl 7.5 of LEP 2009. The objective of the clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The Council submitted that the development will not penetrate to a depth where acid sulfate soils would be likely to be encountered. 5. Earthworks are permissible with development consent, pursuant to cl 7.6 of LEP 2009. The objectives of the clause are to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land; and to allow earth works of a minor nature without separate development consent. 6. DCP 2009 includes, at Chapter B1 Residential Development, the following relevant controls: "4 GENERAL RESIDENTIAL CONTROLS 4.1 Number of Storeys … 4.1.1 Objectives … b) To minimise the potential for overlooking on adjacent dwellings and open space areas… e) To encourage a built form of dwellings that does not have negative impact on the visual amenity of the adjoining residences… 4.1.2 Development Controls 1. Dwelling houses on battleaxe allotments are restricted to 1 storey unless it can be demonstrated that the proposed development achieves the objectives in Clause 4.1.1 and complies with the maximum height maps in the LEP. … 4.10 Car parking and Access … 4.10.2 Development Controls … 11. Dual Occupancy – Access for a rear dwelling must be provided by a dedicated access corridor attached to the same ownership of the rear property. A right of carriageway over the front public road frontage lot in favour of the rear lot will generally not be supported, except where, in the opinion of Council, this access arrangement would provide a more functional arrangement and not pose any adverse impact upon the amenity or streetscape character of the locality. 4.21 Additional Controls for Dual Occupancy's [sic] – Minimum Site Width 4.21.1 Objectives (a) To permit dual occupancy developments upon sites which are of sufficient size to accommodate the required building envelope, car parking, private open space, landscaping and other requirements, whist maintaining the amenity of surrounding residential development and the streetscape character of the locality. … 4.21.2 Development Controls 1. A minimum site width of 15 metres is required for a dual occupancy development. Site width shall be measured for the full width of the site, perpendicular to the side property boundaries. Variations may be granted for irregular shaped blocks or where development can demonstrate compliance with privacy, solar access, private open space, visual amenity, built form, car parking and landscaping requirements..." 1. The existing character and desired future character of Woonona is described in Chapter D1 Character Statements of DCP 2009, where character has two specific elements, as follows: "(i) "Existing character" relates to the current patterns of natural and urban geography which may be observed in an area; and (ii) "Desired or future character" which provides objectives for the future development of a suburb and which emphasizes the important existing features or qualities of the area that should be maintained or enhanced." 1. The existing character and desired future character statements for Woonona are as follows: "Existing character Woonona is located approximately 10 kilometres north of Wollongong City Centre and stretches from the coastal foreshore to the east and the escarpment, to the west. Woonona is a residential suburb which over the last two decades has experienced considerable growth with the release of several new residential housing estates. Woonona contains a variety of housing forms, including detached dwellings and medium density housing in the form of townhouses and villas. The older residential suburbs of Woonona predominantly contain single storey weatherboard and brick dwellings on mid to larger sized allotments of land. The newer residential estates in Woonona contain a mix of single and two storey dwellings, predominantly of a face brick or rendered brick wall and pitched roof tile construction on smaller lots together with some new medium density housing in the form of townhouses and residential flat buildings. The Woonona retail and business centre is located approximately 2 kilometres south of the Princes Highway and Lawrence Hargrave Drive intersection and is a traditional strip centre. The centre is situated on both sides of the Princes Highway and includes a free standing Franklins supermarket, a McDonalds fast food restaurant and a range of specialty retail shops and service orientated businesses. Woonona also contains small remnant pockets of light industrial land uses. Woonona is provided with a range of active and passive open space areas including Woonona Beach, Ocean Park, Nicholson Park, Collins Park, Hollymount Park, Woonona Heights Park and Carole Avenue Reserve. Desired future character Woonona is likely to experience continued growth as a result of the developing residential release areas as well as the replacement of older dwelling stock with larger dwelling-houses. Woonona should remain a relative low density residential suburb, except for along the Princes Highway and in close proximity to Woonona railway station where medium density housing in the form of townhouses and residential flat buildings will be encouraged. Individually designed dwellings with a distinctive coastal character are encouraged for the eastern coastal part of Woonona. Balconies should be lightly framed in stainless steel and / or timber finishes, rather than of brick or masonry construction. For the central and western parts of Woonona, dwelling-houses and medium density housing should be of a face brickwork wall construction with pitched tile or colourbond [sic] roof forms preferred. The Woonona retail and business centre functions as a large neighbourhood centre serving a predominantly residential area to the east and west of the Princes Highway. The role and function of this centre will continued to be focussed on providing daily convenience goods and services and only limited capacity to meet weekly shopping needs. Any new retail or business development in Woonona shall be contained within the confines of the existing business precinct. The residential area between Hollymount Estate and south of Grey Street is recognised for its special "heritage" character and tree lined streets and hence, any alterations and additions to dwellings or new dwellings must be sympathetic with the character of this locality." Public submissions 1. The owners and residents of 20 Hopetoun Street, Woonona, gave evidence at the commencement of the hearing onsite. They are concerned that the proposal will impact on their privacy and amenity. Expert evidence 1. The applicant relied on the expert planning evidence of Luke Rollinson. The Council relied on the expert planning evidence of Mark Adamson. Submissions 1. I accept the applicant's submission that the proposal is for dual occupancy development and the controls for multi-dwelling housing are irrelevant to this application. 2. I accept the applicant's submission that the controls cited by the Council in DCP 2009 each have exceptions to the numerical standard and establish a standard and criteria for an acceptable alternative to meeting the numerical standard. The applicant submitted that the proposal meets each of the controls by virtue of those exceptions to the numerical standard. As DCP 2009 provides an exception to the numerical standard if the objectives of the control are met, it is not necessary to engage s 4.15(3A) of the EPA Act. 3. The Council submitted that there is no issue with the proposal to subdivide the site into two lots. The Council is of the view that a single dwelling on Lot 1 addressing the street and a single storey dual occupancy development on Lot 2 with an access handle to accommodate the driveway access would be acceptable. Consideration Number of storeys on the battleaxe allotment 1. The applicant submitted that the existing multi-storey development to the east and west of the proposed Lot 2 forms the context for the two-storey built form on Lot 2. The Council submitted that the existing development to the rear of the site fronting Farrell Road is also the context of the site and the battleaxe lot should be single storey development. 2. The experts agreed that the two-storey component of the proposed attached dual occupancy development on Lot 2 is setback at least 8m from the rear boundary. 3. According to Mr Rollinson, the proposed attached dual occupancy development is lower than the height of buildings development standard for the site and achieves the objectives of the control, so that the proposed development on Lot 2 is not restricted by the control to one storey. 4. I accept Mr Adamson's criticism of the upper level northern elevation of Unit 3 and 4 windows in the bedrooms, which have a sill height of 1.7m above the finished floor level. These windows are the only window in the second bedroom of both Units 3 and 4. The sill height is raised in order to avoid overlooking from the upper level bedrooms to the rear private open space of 20 Hopetoun Street and I accept and agree with Mr Adamson's opinion that this is a poor solution to provide privacy and results in inadequate internal amenity in these rooms. 5. The bulk of the proposed two-storey attached dual occupancy has a negative impact on the visual amenity of the adjoining residences, including the outlook from the private open space of 20 Hopetoun Street and to a lesser extent, the private open space of the properties to the north of the site fronting Farrell Road. I do not accept that the existing residential flat building to the west of the site dictates a substantial built form on the proposed Lot 2. The residential flat building that dates from the 1970s is on a large site that is accessed from Pitman Lane and it is an anomaly in the built context of the site. 6. I accept Mr Adamson's evidence that a reduced building envelope for a two-storey dual occupancy development on Lot 2, that locates a partial upper storey in a habitable roof space, may be a better design solution. Minimum site width for dual occupancy development 1. The experts agreed that the contention regarding the minimum site width for dual occupancy development is confined to the proposed Lot 1, because Lot 2 complies with the numerical standard. 2. Mr Adamson noted that the existing multi-dwelling developments in Hopetoun Street orientate to a side boundary and their communal vehicular access adjacent to the side boundary. In his view, the narrow width of Lot 1 has generated the layout of the proposal so that Units 1 and 2 orientate to the side, western boundary like multi-dwelling housing, but without the more generous frontage required for multi-dwelling housing, which compromises the proposal for Units 1 and 2. In Mr Adamson's view, Units 1 and 2 do not achieve the objective for the control of maintaining the amenity of surrounding residential development and the streetscape character of the locality, because the street consists of predominately single storey development with multi-dwellings orientated to the side boundary on wider properties. 3. I do not accept Mr Rollinson's evidence that the shortfall of the frontage width dimension of Lot 1 is minor. As Lot 2 is provided with a 1m wide access handle and not a dedicated access corridor that accommodates the driveway to Lot 2, the width of Lot 1 that can be occupied by the two dwellings is the frontage less the shared driveway access to all four dwellings. I accept and agree with Mr Adamson's evidence that this considerable constraint has resulted in awkward and mean spatial planning for the two dwellings proposed for Lot 1. I am not satisfied that the site width at the street front is sufficient to accommodate the two detached dwellings on Lot 1, and the driveway access to all four dwellings. The proposal has a poor presentation to Hopetoun Street and I accept and agree with Mr Adamson's evidence that the form of the proposed development on Lot 1 is inconsistent with the streetscape character because of the uncharacteristically narrow frontage of the lot for a dual occupancy development. Inadequate internal amenity 1. I accept the Council's criticism of the proposal that the internal amenity of the units is inadequate. The total living areas of Units 1 and 2, including the entry foyer, circulation, living room and dining area is approximately 30sqm, for three bedroom units. The dining and living area of Unit 3 is approximately 30sqm for a four bedroom unit, with an upstairs rumpus room that is approximately 13.5sqm and dissected by circulation paths. The spatial layouts of the units are mean with poor circulation and spatial arrangements, and result in inadequate internal amenity for the proposed dwellings. Desired future character 1. The experts agreed that the materials proposed are consistent with the desired future character of Woonona. 2. According to Mr Rollinson, other than the materials to be used, the remaining aspects of the desired future character statement do not relate to the proposal or the site, as the statement refers to other parts of Woonona. 3. According to Mr Adamson, the dual occupancy development on Lot 2 is uncharacteristic of the locality. The two-storey form of the rear attached dual occupancy is not anticipated on battleaxe allotments. The proposal has a conjoined roof form that is unique in the location and presents a poorly proportioned elevation of unarticulated rectilinear form. 4. I accept Mr Adamson's criticism of the architectural design and expression of the proposal. A more skilful architectural design of the rear dual occupancy development within a reduced building envelope would be a better response to the existing low density residential character of development within the locality. Conclusion 1. I am not satisfied that Lot 1 has a sufficient frontage width to accommodate the required building envelope for a detached dual occupancy development, including car parking, private open space, landscaping and other requirements, whilst maintaining the amenity of surrounding residential development and the streetscape character of the locality. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2020/297 for the demolition of existing structures, a Torrens title subdivision into two lots and construction of a dual occupancy development on each resultant lot, is refused. 3. The exhibits, other than Exhibits 4, A, B and C, are returned. ____________ Susan O'Neill Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2021